Third District Court of Appeal
State of Florida
Opinion filed July 26, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-758
Lower Tribunal No. 10-59832
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American Federated Title Corporation,
Appellant,
vs.
Allen Gross & Edith Gross,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Marc
Schumacher, Judge.
Arnstein & Lehr LLP, and Susan E. Trench and Franklin L. Zemel (Fort
Lauderdale), for appellant.
Law Offices of Sheldon Zipkin, P.A., and Sheldon Zipkin, for appellees.
Before EMAS, LOGUE and SCALES, JJ.
SCALES, J.
On Motion to Withdraw Previous Opinion
On April 8, 2015, this Court issued a per curiam affirmance of the trial
court’s dismissal, with prejudice, of Appellant American Federated Title
Corporation’s claim for malicious prosecution and abuse of process against
Appellees Allen Gross and Edith Gross. Like the trial court’s dismissal order, our
affirmance cited to Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013).
After denying American Federated’s post-opinion motions, this Court issued
its mandate on May 29, 2015. Less than two months later, on July 15, 2015, the
Fourth District Court of Appeal issued its opinion in Fischer vs. Debrincat, 169 So.
3d 1204 (Fla. 4th DCA 2015). In Debrincat, our sister court declined to follow this
Court’s decision in Wolfe, and certified conflict between the two cases. Fla. R.
App. P. 9.030(a)(2)(A)(iv). On August 6, 2015, the non-prevailing party in
Debrincat sought to invoke the Florida Supreme Court’s jurisdiction to resolve this
conflict by filing a Notice of Discretionary Jurisdiction with the Supreme Court.
Shortly thereafter, on August 20, 2015, American Federated filed with this Court
its motion to recall mandate pursuant to section 43.44 of the Florida Statutes and
Florida Rule of Appellate Procedure 9.340(a) (section 43.44 and rule 9.340(a)
provide a mechanism for a party to seek to have an appellate court recall its
mandate, if the motion is made within 120 days of the issuance of a mandate).
We granted American Federated’s motion and recalled our May 29, 2015
mandate pending the Florida Supreme Court’s jurisdictional determination (and, if
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jurisdiction were accepted, merits determination) of the Debrincat case. The
Florida Supreme Court accepted jurisdiction, and, on February 9, 2017, the Florida
Supreme Court issued its opinion in Debrincat v. Fischer, 217 So. 3d 68 (Fla.
2017), which disapproved of Wolfe v. Foreman, thereby vitiating this Court’s
decision in the instant case.
American Federated’s appeal to this Court was occasioned by the trial
court’s March 10, 2014 dismissal, with prejudice, of American Federated’s claims
against the appellees sounding in malicious prosecution and abuse of process.
These claims were contained in counts IV and IX of American Federated’s August
19, 2013 second amended complaint. The trial court’s reasoning, based on Wolfe
v. Foreman, was that the litigation privilege barred American Federated’s action
against the appellees.
Because the Florida Supreme Court in Debrincat has disapproved of Wolfe
v. Foreman, we grant American Federated’s motion, withdraw our April 8, 2015
opinion, reverse the trial court’s March 10, 2014 dismissal order, and remand to
allow appellees to file, within twenty days of our renewed mandate in this case, a
renewed response to American Federated’s second amended complaint.
Motion to withdraw previous opinion granted; reversed and remanded with
instructions consistent with this opinion.
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